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October 6, 2004

Being Antonin Scalia

Though surely it would not make for as entertaining a movie as Being John Malkovich, these days it is hard to resist the urge to try to get inside Justice Scalia's head to figure out exactly what makes him tick and explains his votes in the Blakely line of cases. Helpfully, those interested in doing just that can perhaps get a bit of the experience through two articles recently sent my way.

First, from Professor Rory K. Little, we have an article which appeared on Monday in the Daily Journal (and appears here with permission) entitled "Supreme Court Decisions on Sentencing Ignore Intentions of Constitution's Framers." Professor Little, who drafted an unsuccessful re-hearing petition for the state of Washington after it's "loss" in Blakely (available here), speculates in this piece that "Justice Scalia has foreseen, well ahead of most observers, the overall negative results for criminal offenders in his post-Blakely world." The piece contains a number of other interesting observations, and can be downloaded here:Download blakely_daily_journal_article_october_04.rtf

Also trying to get inside Justice Scalia's head is attorney Donald V. Morano, though his piece entitled "Justice Antonin Scalia: His Instauration of the Sixth Amendment in Sentencing" mines the written words of the author of Blakely. Indeed, Morano's piece provides a formal analysis of the words of Justice Scalia going back to Mistretta, and it develops intriguing ideas about not only where Blakely might go, but also about the decision's potential retroactivity. Here's the article:Download justice_scalias_insaturation.doc